Want to use pre-dismissal arbitration? Do this one thing first
There are many benefits of using pre-dismissal arbitration when dealing with misconduct or incapacity.
Most importantly, it could save you the time and money of having to go through all the evidence twice, first at your internal hearing and then at the CCMA. And that's because pre-dismissal arbitration replaces an in-house disciplinary enquiry, internal appeal procedure, conciliation and further arbitration.
Sounds great right?
But before you use pre-dismissal arbitration, there's one thing you must do. Read on to find out what it is so you won't find yourself on the wrong side of labour law.
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Here's the one thing you must do before you use pre-dismissal arbitration in your workplace
You must first get your employee's consent in writing before you use pre-dismissal arbitration.
According to the Labour Law for Managers Loose Leaf Service
, if your employee earns more than the Basic Conditions of Employment Act (BCEA) threshold amount
, you must get consent from him in advance of a specific dispute.
The most obvious way of getting consent in advance is to put a clause in your employment contract.
Make it clear in this clause that the choice to have a pre-dismissal arbitration is entirely up to you.
What if your employee earns below the threshold? Must you get his consent to pre-dismissal arbitration?
If your employee earns less than the BCEA threshold amount
, you can only get his consent to pre-dismissal arbitration for a specific incident. This means you can only do this after you tell him about the allegations against him.
For example, if you have evidence that suggests your employee is guilty of falsifying sick certificates, you can put the allegations to your employee and then ask him to consent to a pre-dismissal arbitration on the issue. Then get him to sign the LRA Form 7.19 ('Request for Pre-dismissal arbitration') indicating his consent.
Bottom line: You must get your employee's consent before you use pre-dismissal arbitration. It's illegal not to.